Thursday, October 29, 2009

…but with a Whimper

…but with a Whimper

Many who have been advocating for drug law reform have visualized the War on Drugs ending in an Armageddon-like battle. We can see weeks of heated debate in both houses of congress with the media following and commenting like it was the super Bowl. We can visualize a signing ceremony in the East Room with Ethan Nadelman getting the souvenir pen and the Congressional Medal of Freedom being given posthumously to Brownie Mary. We can even dream of DEA and ONDCP officials shaking their cups on street corners as they ask for spare change.

But it’s beginning to look like we will win, but without the fireworks. The War on Drugs is ending, not with a bang, but with a whimper.

The Attorney-General’s memo to U. S. Attorneys this week shows the change in strategy. A-G Holder has directed the USAs not to initiate prosecutions involving state medical marijuana laws unless the cases involve more or more of a list of earmarks:

• unlawful possession or unlawful use of firearms;

• violence;

• sales to minors;

• financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;

• amounts of marijuana inconsistent with purported compliance with state or local law;

• illegal possession or sale of other controlled substances; or

• ties to other criminal enterprises.

The important feature of this list is that, with a partial exception of the fourth element, all of the elements require a criminal act in addition to the mere distribution or possession of marijuana. The fourth – financial – element is too vague to serve as a defense for the decision to prosecute except for the inclusion of money laundering. And rest assured, the import of this list is the pressure it puts on USAs to justify any decisions to prosecute with evidence tied to this list.

Anyone who stays reasonably close to state law and who avoids state prosecution probably is safe from federal prosecution unless they adopt an outrageously expensive and public life style.

Many have remarked that, in California at least, medical marijuana has served as a fig leaf, disguising outright legalization. If true, that situation will probably expand to other states; Colorado is giving indications of going the same direction. With the feds ignoring California, the roadblocks are down.

California is beginning to like the taste of marijuana taxes and is getting hungry for more. Other states also face the same kinds of budget crunch.

Many California growers are committed to growing as a matter of principle, and not just for profit. As they have been able to act more publicly, their prices have come down and they have diverted sales from the criminal cartels, who are unwilling, and probably unable, to cut prices. Law enforcement will soon begin to see a resulting savings, and the people will see a decrease in violence and environmental damage.

In approximately fifteen years, fourteen states have enacted medical marijuana laws, either through referendum or legislation. New Hampshire came close this year, with a bill passing in the legislature, but when the governor vetoed it, the state senate failed by two votes to override the veto. Connecticut has twice passed similar legislation, only to have the governor veto it each time.

Iowa presents a curious situation. The Iowa Supreme Court has ordered the Iowa Pharmacy Board to reexamine the classification of marijuana based on medical use in the United States considered as a whole. Testimony at the Board’s hearings, both medical and lay, seems to be overwhelmingly in favor of rescheduling.

This year, Wisconsin, Illinois, Ohio, Pennsylvania, New Jersey, New York, and Massachusetts all have bills pending. All three candidates for governor in New Jersey have pledged to sign the bill if the legislature passes it. In Massachusetts, which decriminalized possession of less than one ounce of marijuana by referendum last year, the latest poll shows 81% of the voters favor medical marijuana. Depending on the results of these legislative attempts, Texas could remain the only state with large population refusing to recognize medical use of marijuana.

Congress is also beginning to take notice. For several years, nation-wide polls have shown more than 70% of the population favoring recognition of medical marijuana. This term four bills have been filed and are awaiting committee action. Three of which would make federal law recognize state medical marijuana laws and the fourth would decriminalize possession of small amounts under federal law. If the easy passage of expansion of the federal hate crime law to cover sexual orientation and the lack of reaction against it are any indication, congress may be more comfortable with changes in this other morally sensitive area as well.

A reasonable prediction is that the end of the current legislative and congressional sessions will have medical use of marijuana nationwide accepted and legal. Details will have to be cleaned up as states with no current legislative sessions come into conformity, but those actions should be somewhat routine.

As California, and to some extent Colorado, is revealing, medical use can lead to more commonplace use. The first dominos have toppled, and the rest of the line is now shaky.

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